| Regini v Board of Mgrs. of Loft Space Condominium |
| 2013 NY Slip Op 04427 [107 AD3d 496] |
| June 13, 2013 |
| Appellate Division, First Department |
| Francesco Regini, Respondent, v Board ofManagers of Loft Space Condominium, Defendant, and SDS Leonard LLC,Appellant. |
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Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered April 17,2012, which denied defendant SDS Leonard LLC's motion to dismiss the complaint asagainst it, and granted plaintiff's cross motion for leave to amend the complaint,unanimously modified, on the law, to grant SDS's motion as to the first and sixth causesof action in the amended complaint, and otherwise affirmed, without costs.
Plaintiff alleges that his condominium unit was damaged by leaks from the building'scommon elements. In moving to dismiss the complaint as against it, SDS tendered a copyof what it represents is the management agreement between defendant Board ofManagers of Loft Space Condominium and nonparty Certified Management LLC todisprove plaintiff's claim that it is the building's managing agent. However, themanagement agreement tendered by SDS is undated and specifies no term, and thus, evenif genuine, does not on its face dispose of plaintiff's claims. Nor does the affidavitsubmitted by SDS constitute documentary evidence within the meaning of CPLR 3211(a) (1) (see Flowers v 73rdTownhouse LLC, 99 AD3d 431 [1st Dept 2012]). Moreover, plaintiff submittedpages of emails tending to show that an entity called "SDS Brooklyn" routinely holdsitself out as responsible for maintenance and repair of the building.
Plaintiff's negligence claim should be dismissed as duplicative of his contract claim,since he does not posit any source of duty other than SDS's alleged managementagreement with the Board (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70NY2d 382, 389-390 [1987]; Pacnet Network Ltd. v KDDI Corp., 78 AD3d 478, 479[1st Dept 2010]).
We reject SDS's argument that, as the agent of a disclosed principal, it cannot be heldliable to plaintiff for any alleged breach of a management agreement with the Board. Atthis early procedural juncture, the scope of the contractual duties that SDS owed toplaintiff, if any, has not been established.
Plaintiff's claim for injunctive relief against SDS should be dismissed, since, as [*2]evidenced by his claims for damages, he has an adequateremedy at law (see Lemle vLemle, 92 AD3d 494, 500 [1st Dept 2012]; Mini Mint Inc. v Citigroup, Inc., 83 AD3d 596 [1st Dept2011]). Concur—Tom, J.P., Friedman, Freedman and Feinman, JJ.